Mental incapacity in Scotland

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We are incrementally developing a new set of content on Scottish private client law for Scottish practitioners. The content will provide an essential resource for Scottish practitioners, as well as practitioners in England and Wales with clients who need advice on cross-border issues.

The Adults with Incapacity (Scotland) Act 2000 sets out the legislative framework for safeguarding the welfare and managing the finances of those people in Scotland who are over the age of 16 and who lack capacity due to mental illness, learning disability or a related condition, or an inability to communicate. Incapacity means not being able to act or make decisions or communicate or understand those decisions. It can also cover situations where there is difficulty retaining memory of decisions.

The

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Question of the week: W died on 06 April 2025. She was resident in England & Wales at her death and all her assets were situate in England & Wales. In 2018 (ie within seven years of her death) W and her husband H made joint lifetime gifts totalling £600,000 to their three children. At the time of the gifts, they were arguable domiciled in Gibraltar, and the gifts were made from Gibraltar-based assets. H died in 2021 domiciled in Gibraltar. Do the lifetime gifts have to now be brought into account for IHT in W's estate in relation to both her NRB and the transferable NRB from H's estate?

This Q&A considers the implications for inheritance tax (IHT) when a resident passes away. Specifically, it examines the scenario where lifetime gifts were made within seven years of death, and the deceased and their spouse were domiciled in a different jurisdiction at the time of the gifts. It also addresses how these gifts impact the deceased's estate, including the transferable nil rate band (NRB) from the spouse's estate.

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